Citation Nr: 1338898 Decision Date: 11/26/13 Archive Date: 12/06/13 DOCKET NO. 11-15 549 ) DATE ) ) On appeal from the Department of Veterans Affairs Regional Office in New Orleans, Louisiana THE ISSUE Whether the Veteran's substantive appeal (VA Form 9) was timely filed with regard to a September 2007 rating decision denying entitlement to service connection for a bilateral knee condition, a bilateral shoulder condition, a back condition, a jaw condition, bilateral hearing loss, and tinnitus. REPRESENTATION Veteran represented by: The American Legion WITNESSES AT HEARING ON APPEAL The Veteran and his fiancée ATTORNEY FOR THE BOARD J.A. Flynn, Associate Counsel INTRODUCTION The Veteran served on active duty in the United States Army from October 1979 to February 1980. This matter comes before the Board of Veterans' Appeals (Board) on appeal from a September 2009 decision of the Department of Veterans Affairs (VA) Regional Office (RO) in New Orleans, Louisiana, which notified the Veteran that his substantive appeal was not timely. In January 2012, the Veteran appeared and gave testimony at a videoconference hearing before the undersigned, and a transcript of the hearing has been associated with the claims file. FINDINGS OF FACT 1. A September 2007 rating decision denied the claims of entitlement to service connection for a bilateral knee condition, a bilateral shoulder condition, a back condition, a jaw condition, bilateral hearing loss, and tinnitus. 2. The RO received the Veteran's timely notice of disagreement (NOD) as to the above-stated issues on December 20, 2007, and a related statement of the case (SOC) was issued on June 16, 2009 and sent to the Veteran on June 19, 2009. 3. The RO received a substantive appeal (VA Form 9) from the Veteran on September 9, 2009. 4. A request for an extension of the time limit for filing the substantive appeal, timely or otherwise, is not of record. CONCLUSION OF LAW The Veteran did not submit a timely substantive appeal with regard to the September 2007 rating decision, nor did he submit a timely request for extension of the time limit for filing the substantive appeal. 38 U.S.C.A. §§ 7105, 7108 (West 2002); 38 C.F.R. §§ 3.109, 20.200, 20.202, 20.302, 20.303 (2013). REASONS AND BASES FOR FINDINGS AND CONCLUSION The Board has thoroughly reviewed all the evidence in the Veteran's claims folder. Although the Board has an obligation to provide reasons and bases supporting this decision, there is no need to discuss, in detail, each piece of evidence of record. Gonzales v. West, 218 F.3d 1378, 1380-81 (Fed. Cir. 2000) (the Board must review the entire record, but does not have to discuss each piece of evidence). The analysis below focuses on the most salient and relevant evidence and on what this evidence shows, or fails to show, on the claim. The Veteran must not assume that the Board has overlooked pieces of evidence that are not explicitly discussed herein. Timberlake v. Gober, 14 Vet. App. 122 (2000) (the law requires only that the Board address its reasons for rejecting evidence favorable to the Veteran). The Board must assess the credibility and weight of all evidence, including the medical evidence, to determine its probative value, accounting for evidence which it finds to be persuasive or unpersuasive, and providing reasons for rejecting any evidence favorable to the claimant. Equal weight is not accorded to each piece of evidence contained in the record; every item of evidence does not have the same probative value. When all the evidence is assembled, VA is responsible for determining whether the evidence supports the claim or is in relative equipoise, with the Veteran prevailing in either event, or whether a preponderance of the evidence is against a claim, in which case, the claim is denied. Gilbert v. Derwinski, 1 Vet. App. 49 (1990). Duties to Notify and Assist VA has duties to notify and assist claimants in substantiating a claim for VA benefits. 38 U.S.C.A. §§ 5100, 5102, 5103, 5103A, 5107, 5126 (West 2002); 38 C.F.R. §§ 3.102, 3.156(a), 3.159, 3.326(a) (2012). In the decision below, however, the Board finds that the Veteran did not submit a timely substantive appeal of the underlying rating decision. As such, the Board is declining jurisdiction to consider the merits of the issue. 38 U.S.C.A. § 7104(a) (West 2002); 38 C.F.R. § 20.101 (2013). Thus, with regard to the issue on appeal, VA is not required to take any further action to assist the claimant. 38 U.S.C.A. § 5103A(a) (West 2002); Dela Cruz v. Principi, 15 Vet. App. 143, 149 (2001) (statutory and regulatory provisions pertaining to VA's duty to notify and assist do not apply to a claim if resolution is based on statutory interpretation, rather than consideration of factual evidence). In this case, the Veteran was properly notified of the jurisdictional problem, and he was afforded the procedural safeguards of notice and the opportunity to be heard on the question of timeliness. Legal Principles and Analysis The Board has jurisdiction over appeals of questions of law and fact that involve entitlement to VA benefits, as well as to resolve questions of its own jurisdiction. 38 U.S.C.A. § 7104 (West 2002); 38 C.F.R. §§ 19.4, 20.101 (2013). The decision as to the timeliness and adequacy of a substantive appeal will be made by the Board. 38 U.S.C.A. § 7108 (West 2002); 38 C.F.R. § 20.101(c), (d) (2013). An appeal consists of a timely filed written NOD and, after an SOC has been furnished, a timely filed substantive appeal. 38 C.F.R. § 20.200 (2013). A substantive appeal consists of a properly completed VA Form 9, "Appeal to Board of Veterans' Appeals" or correspondence containing the necessary information. Proper completion and filing of a substantive appeal are the last actions that an appellant needs to take to perfect an appeal. 38 C.F.R. § 20.202 (2013). The substantive appeal must be filed within 60 days from the date that the RO mails the SOC to the Veteran, or within the remainder of the one-year period from the date of mailing of the notification of the original determination being appealed, whichever period ends later. The date of mailing of the SOC will be presumed to be the same as the date of the SOC, and the date of mailing the letter of notification of the determination will be presumed to be the same as the date of that letter for purposes of determining whether an appeal has been timely filed. 38 U.S.C.A. § 7105 (West 2002); 38 C.F.R. § 20.302(b) (2013). An extension of the 60-day deadline to file the substantive appeal may be granted for good cause shown. A request for such an extension must be made in writing prior to the expiration of the time limit for filing the substantive appeal. 38 C.F.R. § 20.303 (2013). The RO may close an appeal without notice to an appellant for failure to respond to an SOC within the period allowed. 38 C.F.R. § 19.32 (2013). In computing the time limit for filing a written document, the first day of the specified period will be excluded and the last day included. A response postmarked prior to the expiration of the applicable time limit will be accepted as having been timely filed. In the event that the postmark is not of record, the postmark date will be presumed to be five days prior to the date of receipt of the document by VA. In calculating this five-day period, Saturdays, Sundays, and legal holidays will be excluded. 38 C.F.R. § 20.305(a) (2013). The 60-day period in which to file a substantive appeal is not jurisdictional, and VA may waive any issue of timeliness in the filing of a substantive appeal, either explicitly or implicitly. Percy v. Shinseki, 23 Vet. App. 37, 45 (2009). In that case, by treating a disability rating matter as if it were part of the Veteran's timely filed substantive appeal for more than five years, VA had waived any objections it might have had to the timeliness of the appeal with respect to the matter. Turning to the facts in this case, the RO issued a rating decision in September 2007 denying the claims of entitlement to service connection, and the Veteran was notified of this decision in a letter dated September 18, 2007. A timely NOD was submitted in December 2007. The RO issued an SOC on June 16, 2009, and the Veteran was notified of the SOC in a letter dated June 19, 2009. This letter included notice that the VA Form 9, Appeal to the Board of Veterans' Appeals, must be filed with the RO within 60 days from the date of the letter, or within the remainder, if any, of the one-year period from the date of the letter notifying the Veteran of the September 2007 rating decision (this period had expired). A blank VA Form 9 was noted as an enclosure to the letter. The letter also indicated that the RO was available to explain the form if the Veteran had any questions. The SOC also included relevant regulations about the filing of a substantive appeal, including the provision that if the substantive appeal was not filed within the specified time period, the Veteran's case may be closed without notice to him. The due date for the substantive appeal, 60 days from the date of mailing of the SOC, was Wednesday, August 19, 2009. The Veteran signed and dated a substantive appeal (VA Form 9) August 31, 2009, and the RO received it on September 9, 2009, based on the date stamp that appears on the document. The postmark for the mailing of the substantive appeal form is not of record; however, affording the Veteran all reasonable doubt, the presumed postmark date (five days prior to the date of receipt of the document by VA) is still after the August 19, 2009 deadline. Between the date of the mailing of the SOC and this filing, there were no submissions of record from the Veteran or his representative, regarding an appeal or otherwise. Consequently, the RO notified the Veteran in a September 2009 letter that his substantive appeal was untimely, and the Veteran was informed of his right to appeal the RO's timeliness determination, providing him with an appeal rights form (VA Form 4107). In October 2009, the Veteran filed a written submission expressing dissatisfaction with the RO's timeliness determination. The RO determined that this filing constituted an NOD to the September 2009 determination. 38 C.F.R. § 20.201 (2013). In this submission, the Veteran stated that he was not aware of the time limit associated with filing his substantive appeal. In April 2011, the Veteran submitted a statement indicating that he responded to the June 19, 2009 SOC in "October 2009 by Priority Mail." At his January 2012 hearing before the undersigned, the Veteran's fiancée stated that she spoke with a VA employee who told her that the Form 9 had been timely filed. Turning to an application of the pertinent laws and regulations to the facts in the instant case, the Veteran's substantive appeal was filed more than 60 days following the issuance of the SOC, and it is therefore untimely. Furthermore, the Veteran does not allege that his substantive appeal was postmarked by August 19, 2009. Instead, the Veteran has alleged that he was confused regarding the time limit for the filing of a substantive appeal. The Board observes both that the June 19, 2009 letter accompanying the SOC clearly informed the Veteran of the applicable time limits and that the Veteran has been represented throughout his appeal. Therefore, while the Board is sympathetic to the Veteran's claims of confusion regarding the appropriate filing deadline for a substantive appeal, the Board finds that the Veteran was properly informed of such deadlines. Additionally, upon review of the evidence, the Board finds that unlike the claimant in Percy, the RO did not treat the Veteran's substantive appeal as if it were timely. While the Board acknowledges the statement of the Veteran's fiancée that a VA representative assured her that a substantive appeal had been timely filed, the Board finds no notation to this effect in the Veteran's claims file. As such, the Board finds that the RO did not waive the issue of timeliness of the substantive appeal at any time, either explicitly or implicitly. In addition, the record does not reflect, and the Veteran does not contend, that he filed a timely request for an extension of time to file a substantive appeal under 38 C.F.R. § 20.303 or otherwise contacted the RO between the date of mailing of the SOC and the September 2009 filing of his substantive appeal. In sum, the claims folder does not contain a timely filed substantive appeal or a timely request for an extension of time in which to file a substantive appeal. Moreover, the RO did not waive the issue of timeliness of the substantive appeal at any time. Accordingly, in light of the entire record, the Board concludes that it does not have jurisdiction to consider the Veteran's underlying claim, and the appeal is dismissed. ORDER As a timely substantive appeal was not filed following a September 2007 rating decision denying entitlement to service connection for a bilateral knee condition, a bilateral shoulder condition, a back condition, a jaw condition, bilateral hearing loss, and tinnitus, the appeal is dismissed. ____________________________________________ F. JUDGE FLOWERS Veterans Law Judge, Board of Veterans' Appeals Department of Veterans Affairs